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Law making it easier to fire VA executives still unused

Mary Troyan
8:29 a.m. CDT September 5, 2014

Martha Roby, R-Montgomery, said “the whole reason for the accountability provisions in the law were to cut through the legal barriers for removing problem employees.”
(Photo:
Shealah Craighead Photography
)

WASHINGTON – It's been almost a month since Congress made it easier for the Veterans Affairs Department to fire senior leaders for poor performance, but the agency has not yet used its new power.

In some cases, as in Alabama and Arizona, managers have been put on paid administrative leave while investigations proceed. In Colorado and Wyoming, the VA has recommended disciplinary actions, including firing, but no final decisions have been announced.

Some on Capitol Hill are growing impatient. The national scandal over long patient wait times and bureaucratic coverups inside the Veterans Health Administration prompted Congress to streamline the process for firing senior VA officials.

The House Veterans' Affairs Committee has asked the VA for updates on recent disciplinary actions. As of Thursday, the committee had none.

"We have seen no evidence that the corrupt bureaucrats who created the VA scandal will be purged from the department's payroll anytime soon," committee chairman Rep. Jeff Miller, R-Fla., said recently. "Until that happens, VA will never be fixed."

VA Secretary Robert McDonald told reporters in August that the agency was holding employees accountable for the mistakes, but he did not give any details about firings.

The law President Barack Obama signed Aug. 7 shortens the appeal process for senior executives who are fired or transferred. Under the new law, fired or transferred executives have seven days to appeal, eliminating what had been a more open-ended review process of at least a month before a firing or suspension took effect.

The new law also says the U.S. Merit Systems Protection Board, an independent agency that guards against political influence in personnel decisions involving merit system employees in the federal government, must decide appeals within 21 days. If it goes any longer, the decision to fire or transfer is final.

The new law also says senior VA executives can be removed from civil service for poor performance, not just misconduct. And it says those executives won't get paid during the appeals process.

At Central Alabama Veterans Health Care System in Montgomery and Tuskegee, the director and chief of staff were placed on paid administrative leave two weeks after the bill was signed.

VA officials in Atlanta said the leave allows for a "thorough and unbiased process" to review administrative and clinical operations at CAVHCS.

Problems include long wait times for veterans to receive care, attempts to cover up the wait times, unread patient X-rays, falsification of patient records by a pulmonologist (who continued to falsify records even after he was caught), and several instances of VA employees breaking rules involving patient care and safety with little or no reprimand.

Rep. Martha Roby, R-Montgomery, said Congress expects McDonald to use his new authority.

"I can understand how there are procedures that need to be followed in certain circumstances, but the whole reason for the accountability provisions in the law were to cut through the legal barriers for removing problem employees," Roby said through a spokesman.

Advocates for federal employees and the merit system, however, say the new process for firing, demoting or transferring senior VA executives is unnecessary and unfair, and there are suggestions it could be challenged in court.

The three members of the Merit Systems Protection Board told Obama in writing that the new law's section on firing senior VA officials is "on weak constitutional footing" in part because it prevents the board members from having the final word on the appeal. The VA law says decisions by the board's administrative judges cannot be appealed to the three board members or a federal court, a rare prohibition.

The new VA law "could set a very dangerous precedent" by letting Congress undermine the ability of presidentially appointed officers to do their jobs, the three board members wrote Aug. 1, before Obama signed the law.

The Senior Executives Association said the job performance of senior government executives was regularly reviewed even before the new VA law, and there were plenty of ways to hold executives accountable for poor performance.

"To the extent that some are not, it is not because tools do not exist to hold employees accountable; rather it appears that they are not being used either because the senior executive isn't engaging in misconduct or poor performance, or because political leadership isn't willing to use the tools," according to a statement from the Senior Executives Association.

Obama personally applauded the provision making it easier to fire senior VA executives when he signed the bill last month in Virginia.

"We've got to give (VA Secretary McDonald) the authority so that he can move quickly to remove senior executives who fail to meet the standards of conduct and competence that the American people demand," Obama said. "If you engage in an unethical practice, if you cover up a serious problem, you should be fired. Period. It shouldn't be that difficult."